By Johnathan Paoli
The Johannesburg Magistrates’ Court has refused to compel the state to disclose the identities and residential addresses of witnesses in the case against self-proclaimed political fixer Brown Mogotsi, citing concerns over their safety and that of their families.
Mogotsi, a North West businessman, faces charges including unlawful possession of a firearm and ammunition, perjury and defeating the ends of justice, linked to an alleged staged assassination attempt in Vosloorus last year.
The court on Friday ordered the state to obtain the cellphone records of witnesses who allegedly witnessed the incident, with their identities redacted and replaced by alphabetical and numerical identifiers.
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The records will allow the defence to investigate whether the witnesses were at the scene of the alleged incident without revealing their identities.
Magistrate Annalise Tlhapi said the court had to balance Mogotsi’s constitutional right to a fair trial against the state’s interest in protecting witnesses and ensuring that justice was served.
“The starting point is that every accused person has a right to a fair trial, including the right to make full answers in defence and to adjust and challenge evidence. The court in each case would have to exercise a proper discretion balancing the accused’s need for a fair trial against the legitimate interests of the state, enhancing and protecting the end of justice. And in attempting to strike the appropriate balance, various rights and principles require reiteration,” Tlhapi said.
The ruling followed an application by Mogotsi’s defence for further particulars to help prepare for trial.
The defence sought the cellphone records of state witnesses, employment records of witness A5, proof of residence for witnesses A5 and A6, unredacted witness statements and still photographs extracted from video footage.
The state opposed the application, arguing that it had already provided sufficient information for Mogotsi to prepare his defence and that disclosing the identities of eyewitnesses could prejudice their evidence.
The prosecution maintained that the defence had been furnished with witness statements and would have an opportunity to cross-examine the witnesses during the trial.
However, Mogotsi’s defence argued that withholding the witnesses’ identities prevented it from properly investigating their credibility, possible biases and whether they had been compromised.
Tlhapi found that the defence had established grounds for obtaining the cellphone records, but that this could be achieved without revealing the witnesses’ identities.
She ordered the state to obtain a subpoena for the cellphone records of witnesses who allegedly witnessed the incident.
“The names of the witnesses [are] to be redacted and replaced with an alphabet and number identifying the witness,” Tlhapi ruled.
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The state must also provide the defence with the dates on which each witness gave a statement.
On the employment records, the magistrate ordered the state to request confirmation from the employer of witness A5, including whether the witness was employed by the company and the times they reported for work and knocked off on the day of the alleged incident.
However, Tlhapi dismissed the defence’s request for proof of residence for witnesses A5 and A6, as well as its application for unredacted witness statements.
Explaining her decision, she said disclosing the witnesses’ personal information could expose them and their families to unnecessary risks.
“I would not put these witnesses at risk and their families. The request for the addresses of the witnesses is dismissed. I feel that I’ve dealt with this matter previously. My stand is still the same that it’s more important that witnesses be protected. We should not then risk the witnesses unnecessarily,” Tlhapi said.
“And some of the witnesses will even fear to come to court if their addresses have been disclosed and their names have been disclosed. The witnesses will come to court. The defence will be able to see the witnesses and will be able to cross-examine the witnesses,” she added.
The magistrate acknowledged that disclosing relevant information generally advanced the search for truth, but cautioned that an accused person’s right to disclosure was not unlimited.
“The purpose of the fair trial provision is not to make it impracticable to conduct a prosecution,” Tlhapi said.
Regarding the request for still photographs extracted from video footage, Tlhapi said the state had already complied and the defence had confirmed receiving the images.
The matter was postponed to 9 December. Mogotsi remains in custody.
